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SUPREME COURT ISSUES FINAL ORDERS OF 2010

[Posted December 29, 2010] This time, I have to admit that I was surprised. I knew to expect at least the likelihood of opinions from the Court of Appeals yesterday, but as my introduction to yesterday’s essay indicated, I figured those would be the last appellate opinions we’d see out of the state-court system this year. Today, the Supreme Court proved my assumption to be wrong by issuing two unpublished orders in civil cases. In both instances, the results are good for the plaintiffs.

In Cawley v. Spickermann, the jury apparently didn’t like the cut of the plaintiff. The defendant admitted liability, so this was only about damages. The plaintiff offered evidence of $2,389 in specials, and the jury went in to deliberate. After a time, it returned a Bowers verdict — $2,389, the exact amount of specials. The trial judge admonished the jury to pay closer attention to the instructions (presumably including that part about pain suffering, inconvenience, etc.) and try again. The jury then sent in a couple of questions, one of which was along the lines of, “Jeez, do we have to award this guy more than his medical bills?”

The judge answered only that the jury couldn’t return a verdict for the exact amount of specials, so the jury went back and came up with an elegant solution: a verdict of zero dollars. This time, the trial judge backed them, apparently reasoning that a jury can always find that the plaintiff hasn’t proven the amount of his damages to the jury’s satisfaction.

Today, the Supreme Court reverses and sends the case back for a new trial (and, to the plaintiff’s great relief, a new jury). It finds that the jury clearly felt that the plaintiff was damaged – its earlier Bowers verdict indicates that pretty clearly – and viewed in context, the Supreme Court rules today that a zero-dollar verdict is inadequate as a matter of law.

The other case decided today is Bailey v. Keith Irwin Installations, involving the Workers’ Comp bar in a fellow-statutory-employee context. Bailey worked for Aramark, the company that rents uniforms. He fell from a catwalk above the company’s facility in southwest Virginia, and sued the company that built the catwalk.

The contractor defended by pointing out that it had built the catwalk in conjunction with Aramark employees, so it was entitled to the statutory-employee protections of the Comp Act. The trial court agreed and sustained a plea in bar, dismissing the case (and presumably giving Bailey the number for the local Workers’ Comp Commission office).

As I hinted above, the employee wins this one on appeal. The Supreme Court evaluates the statutory-employee doctrine and finds that it doesn’t help the contractor here, because building catwalks isn’t Aramark’s business. The fact that the company helped to construct this one doesn’t change that, so the contractor is just a contractor and may eventually be liable in tort.

One other point worth mentioning here: Today’s order notes that the parties incorrectly briefed and argued the “normal work test” instead of the “stranger to the work test” for evaluating the contractor’s potential liability. The former test applies where the employee is injured by an owner or general contractor, while the latter applies where the injury is caused by a sub. But as the court also points out, the result in this appeal is the same under either test, so the error doesn’t affect the outcome.

As both of these orders are unpublished, they won’t appear on the court’s website. I’ll post them shortly to the “SCV Unpublished Orders” page in the archives.